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10 The accused had earlier told police that after killing the deceased he had caught a train from St Peters Station and had ended up in Kiama. Senior Constable Daniel Gamble gave evidence that an examination of CCTV footage revealed that the accused was seen to board a city bound train from St Peters Station at 7.16 pm on 8 February 2008. He was seen to alight at Kiama station at 1.41 am on 9 February. He was observed to then remain in that vicinity until about 4.40 am when he appeared to go to sleep on a bench at the station. At 6.06 am he was seen boarding a north bound train from which he alighted at Dapto Station at 6.35 am. He told police that he had spent his time until his arrest living on the beach at Kiama and travelling from there to Nowra.
11 The accused made the following formal admissions pursuant to s 184 of the Evidence Act.
1 The deceased, John Vincent Maher, died in Unit 702/31-35 Station Street, Newtown, New South Wales, between 7 and 11 February 2008.
2 John Vincent Maher's death was caused by blunt force injury to his head and stab wounds to his trunk.
3 I am the person who inflicted the injuries to John Vincent Maher which caused his death.
12 In addition, Mr Winch conceded that no issue would be taken with the fact that the Crown was able to establish that the accused had the relevant intention, at the time that he inflicted the fatal injuries, and thus prove its case for murder. He conceded that the evidence, and in particular the medical evidence, established beyond reasonable doubt that the accused had acted with at least an intention to inflict grievous bodily harm upon the deceased.
13 Subject to what follows about the accused's mental condition, I formally record that I find that each of the elements of the offence of murder which the Crown is obliged to prove beyond reasonable doubt have been made out.
14 I should observe that the Crown raised at the outset of the proceedings the possibility that an issue of provocation, pursuant to s 23 of the Crimes Act, may arise. Not only did Mr Winch not seek to rely upon provocation, but he readily acknowledged that the Crown had excluded the reasonable possibility that the accused had been so acting. That was an entirely appropriate concession for two reasons. First, it is most unlikely that the words which apparently caused the accused to lose his self-control, were actually uttered by the deceased (although the accused in his delusional state may well have believed that they had been). Secondly, there was absolutely no basis upon which the "ordinary person" requirement in ss(2)(b) of s 23 could have been met. Accordingly, I put that issue to one side.
15 In the final analysis, the sole issue requiring the court's determination turns upon an assessment of the accused's mental condition. In approaching this issue, I gratefully adopt the approach which was taken by Kirby J in R v Jennings [2005] NSWSC 789. His Honour said:
The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial.
The defence of mental illness arises where the accused satisfies the Court, as a matter of probability, that, at the time of committing the act, he comes within what is known as the M'Naghten rule ((1833) 10 Cl and Fin 200 [8ER 718]). The McNaghten rule has two limbs. The accused must demonstrate either that he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of his act or, alternatively, if he did know, then he did not know that what he was doing was wrong. The first limb, in lay terms, requires that the accused did not know what he was doing, whereas the second deals with his appreciation of the morality of what he was doing, that is, whether it was right or wrong.
Here, Mr Jennings told the police that he knew that when he wielded the knife he was attempting to stab the victim. And, of course, he did stab the victim. The issue, therefore, is whether, as a matter of probability, he did not appreciate that what he was doing was morally wrong, and that because of mental illness which deprived him of the ability to reason and form judgments. Where the defence is made out, the appropriate verdict is "not guilty by reason of mental illness" (s38 Mental Health (Criminal Procedure) Act 1990) ("the Act"). The person, however, is not then released. In accordance with s39 of the Act, a person, the subject of such a verdict, is detained "in such place and in such manner as the Court thinks fit until released by due process of law". A person subject to an order made under s39 becomes a forensic patient under the jurisdiction and supervision of the Mental Health Review Tribunal, which makes recommendations to the Minister (Mental Health Act 1990, s81).
Where, as here, the issue of M'Naghten mental illness is raised, whether by the Crown or the accused, or, indeed, by the Judge, the onus rests upon the accused to prove that defence on the balance of probabilities ( R v Ayoub (1984) 2 NSWLR 511 at 515). The Court is then obliged to resolve that issue before addressing the availability of the partial defence of substantial impairment.
Turning, then, to the partial defence, were the Court to find that the impairment suffered by the accused through mental illness was not total, but was nonetheless substantial, the partial defence of substantial impairment by reason of abnormality of mind may then be available. What, then, are the elements of that defence? The accused must prove, again as a matter of probability, the following: